State v. Cantwell

• Decision Date: 23 October 1906
• Citation: State v. Cantwell, 142 N.C. 604, 55 S.E. 820 (N.C. 1906)
• Parties: STATE v. CANTWELL.
• Court: North Carolina Supreme Court

55 S.E. 820

142 N.C. 604

STATE v. CANTWELL.

Supreme Court of North Carolina

October 23, 1906

Appeal from Superior Court, New Hanover County; W. R. Allen, Judge.

Robert C. Cantwell was summoned as a juror, and, having appeared and refused to serve, was fined $10, and appeals. Affirmed.

Walker J., dissenting.

Davis & Davis and E. S. Martin, for appellant.

The Attorney General and Walter Clark, Jr., for the State.

CLARK C.J.

The defendant, regularly drawn and summoned as a juror for that term of court, declined to serve, and was fined $10, and appealed.

He claimed to be exempt under chapter 55, p. 72, Priv. Laws 1868-69, ratified March 8, 1869, which incorporated the Wilmington Steam Fire Engine Company, and contains the provision that its "members shall, during membership be exempt from all jury and militia duty, and in case of active service in said company for five successive years, said exemption shall continue during the life of the member rendering such active service." The defendant served actively five successive years. The exemptions under this and other private acts (passed usually, as is common knowledge upon the motion of the members from the county in which each locality lies, and without scrutiny or opposition) became so numerous as to impair often the supply of good jurors. The General Assembly thereupon passed Revisal 1905, § 1957, which directs the county commissioners to select the names of "all such persons as have paid all the taxes assessed against them for the preceding year, and are of good moral character and of sufficient intelligence. A list of the names thus selected shall be made out by the clerk of the board of commissioners and shall constitute the jury list, and shall be preserved as such." To this sweeping clause Revisal 1905, § 1980, adds the exemptions to be allowed, which are much fewer than those formerly allowed even in the general law, and contains this item: "No active member of a fire company shall be required to serve as a juror." Wilmington in 1897 adopted a paid fire department, and the defendant's company ceased its active service. The county commissioners having found that the defendant was liable to jury duty under Revisal 1905, § 1957, and not exempt under Revisal 1905, § 1980, placed his name on the jury list. Revisal 1905, § 1957, is broad, and succinctly prescribes what citizens shall be liable to jury duty, subject only to the exemptions set out in Revisal 1905, § 1980. This is a matter solely within legislative control, subject to change in the judgment of any succeeding Legislature. If the provision in the aforesaid act of March 8, 1869, under which the defendant claims exemption from rendering jury service to his state, is public in its nature, it is clearly repealed by Revisal 1905, § 5453. "All public and general statutes not contained in this Revisal are hereby repealed, with the exemptions and limitations hereinafter mentioned." If however, it is a private act, it is not less repealed by Revisal 1905, § 5458. "No act of a private nature unless in conflict with the provisions of this Revisal *** shall be construed to be repealed by any section of this Revisal." The exemption claimed by defendant under chapter 55, p. 72, Priv. Acts 1868-69, is directly in conflict with Revisal 1905, § 1957, which directs the county commissioners to place the names of all taxpayers of good moral character, etc., on the list for jury duty, the exemptions being stated in section 1980, which does not exempt the defendant. It will be noted that this repealing clause is radically different from section 3873 of the Code, which provides: ""No act of a private or local nature *** shall be construed to be repealed by any section of this Code." The General Assembly had seen the inconveniences of this section, and the radical change of language in Revisal 1905, § 5458, shows a clear intention to repeal all private acts inconsistent with the provisions of the Revisal. Language could not be clearer.

The defendant contends, however, that the act of 1869 was a contract between the fire company and the state, and is protected by the principles laid down in the Dartmouth College Case. Whatever may be said of the correctness or incorrectness of that decision (and very much has been said), the inconveniences proved so great that this state, like most, if not all, others, has since inserted in its Constitution the following provision (article 8, § 1): "Corporations may be formed under general laws, but shall not be created by special act except for municipal purposes and in cases where, in the judgment of the Legislature, the object of the corporations can not be attained under general laws. All general laws and special acts, passed pursuant to this section, may be altered from time to time or repealed." The Constitution was adopted April 18, 1868, and, if the exemption in the charter of the Wilmington Fire Company, ratified March 8, 1869, was a contract, there was written into that contract, as a part of it, that the Legislature had a right to amend or repeal, from time to time, any and all rights thereby conferred. But in truth, independent of that constitutional provision, exemptions from military and jury and other public duties were never at any time contracts by which one Legislature could irrevocably sell, or give away, the right of the state to command the service of its citizens for public and governmental duties. Such exemptions were adjudged to be mere privileges, revocable by subsequent Legislatures, and were so held in all the states (except in one case) in which the contention was raised, even prior to the incorporation into their respective Constitutions of the provision above quoted from the North Carolina Constitution.

"It has been generally held that the right of exemption from jury service is not a vested right, but a mere gratuity which may be withdrawn at the pleasure of the Legislature." 17 A. & E. Encyc. (2d Ed.) 1177. Judge Cooley, Cons. Lim. (7th Ed.) 329, 546, says: "The citizen has no vested right in statutory privileges and exemptions. Among these may be mentioned exemptions from the performance of public duties upon juries, or in the militia and the like, exemptions of persons and property from assessment for the purpose of taxation, *** exemptions from highway labor and the like. All these rest upon reasons of public policy, and the laws are changed as the varying circumstances seem to require *** the privilege of exemption might be recalled, without violation of any constitutional principle. The fact that a party had passed the legal age under an existing law, and performed the service demanded by it, could not protect him against further calls, when public policy or public necessity was thought to require it." "Exemption from service on juries is always subject to legislative repeal, even as to persons who by the performance of specified services have earned an exemption under its provisions." Dunlap v. State, 76 Ala. 460. That case was exactly "on all fours" with this; the exemption from jury duty being claimed by virtue of services in a fire company for five years as prescribed in its charter. Clopton, C.J., in a very able opinion, quotes with approval from Bragg v. People, 78 Ill. 328: "It is impossible for the state to protect life, liberty, and property without the aid of juries. The system is a vital part of the machinery of government. It is the undoubted duty of the legislative department to provide for the selection of jurors in such way as shall best subserve the public welfare. Of this, of course, it must necessarily be the judge, and may provide that, for the time being, certain classes, by reason of what shall be deemed sufficient public considerations, shall be exempt; but to say that such exemption shall be perpetual, whatever may be the public necessities, would be to authorize one Legislature, by unwise legislation, to tie the hands of its successors, even to the extent of destroying the government"--citing many authorities, a few only of which we will quote. In Ex parte Rust, 43 Ga. 209, Lochrane, C.J., holds that a general statute providing for jury service repeals all previous exemptions not found therein, and that an exemption previously conferred in the charter of a fire company upon its members is not a contract, but a privilege revocable by any subsequent Legislature. Though the fireman had served the five years provided in the charter, the exemption is "not a contract, but a mere privilege, and may be revoked by the Legislature at any time." Beamish v. State, 65 Tenn. 532. "The duty of serving on juries is one of the inseparable incidents of citizenship, and all exemptions from such service [in that case for service in a fire company] are mere gratuities revocable at the pleasure of any succeeding Legislature, and are revoked by a general law, prescribing those subject to jury duty, without excepting those claiming exemption under prior local or general acts." In re Scranton, 74 Ill. 161. But the subject is most fully and conclusively discussed, and the same conclusion reached, in Bragg v. People, 78 Ill. 328. In that case the plaintiff had served seven years in a fire company whose charter provided that such length of service should exempt from jury duty. The court held that no Legislature can sell, or give, or bargain away, irrevocably, the sovereign right of the state to command the service of its citizens for military, jury, road, or other public duty, and adds: "Services performed in the fire department can, by no fiction, be made to take the place of the man in the jury box." There are other cases to the same purport as above.

The sole case to be found to the contrary is In re Goodin, 67 Mo. 637, which is based upon the ground that an...